JAGJEET SINGH & ORS versus ASHISH MISHRA @ MONU & ANR. on 18 April 2022

536

SUPREME COURT REPORTS

[2022] 4 S.C.R. 536

[2022] 4 S.C.R.

A

JAGJEET SINGH & ORS.

v.

ASHISH MISHRA @ MONU & ANR.

(Criminal Appeal No. 632 of 2022)

B

APRIL 18, 2022

[N. V. RAMANA, CJI, SURYA KANT ANDHIMA KOHLI, JJ.]

Code of Criminal Procedure, 1973: ss.2(wa),372, 439 –CVictim’s right to be heard – Consideration for granting bail –Lakhimpur Kheri Incident – On 03.10.2021, an annual Dangal(wrestling) competition was organised by respondent-accused –Some supporters of respondent No.1, who were travelling by a carto the Dangal venue were allegedly attacked by certain farmers –Due to the large protest, the route of the Chief Guest had to beDchanged – Respondent Accused became agitated –Respondent No.1and his aides, armed with weapons, left the Dangal venue in aMahindra Thar SUV, a Fortuner vehicle and a Scorpio vehicle,and drove towards the farmers’ protest site and allegedly drove intothe crowd of the returning farmers and hit them –As a consequenceEof this incident, four farmers, one journalist, the driver of the TharVehicle and two others, got killed –Respondent-accused was chargedu/ss. 147, 148, 149, 302, 307, 326 r/w. ss. 34 and 120B IPC, and u/ss.3, 25 and 30 of the Arms Act, 1959 –Respondent-accused movedbail application before High Court – High Court granted regularbail to him, opining that it was a case of “accident by hitting withFthe vehicle’’ –Aggrieved victims filed instant appeal – Held: Theright of a victim under the amended Cr.P.C. are substantive,enforceable, and are another facet of human rights – A ‘victim’within the meaning of Cr.P.C. cannot be asked to await thecommencement of trial for asserting his/her right to participate inGthe proceedings – A ‘victim’ has unbridled participatory rights fromthe stage of investigation till the culmination of the proceedings inan appeal or revision – High Court failed to acknowledge the rightof the victims –The ‘victims’ were denied a fair and effective hearingat the time of granting bail to respondent-Accused –High Courtcompletely lost sight of the principles which conventionally governH

a Court’s discretion when deciding the question whether or not togrant bail – High Court adopted a myopic view of the evidence onthe record and proceeded to decide the case on merits –High Courttook into account several irrelevant considerations, whilstsimultaneously ignoring judicial precedents and establishedparameters for grant of bail –The impugned order of the High cannotbe sustained –To meet ends of justice, case remitted to High Courtfor fresh adjudication of the bail application after giving adequateopportunity of hearing to the victims as well.

Code of Criminal Procedure, 1973: Considerations whilegranting the bail – A Court while deciding an application for bail,should refrain from evaluating or undertaking a detailed assessmentof evidence, as the same is not a relevant consideration at thethreshold stage – While a Court may examine prima facie issues,including any reasonable grounds whether the accused committedan offence or the severity of the offence itself, an extensiveconsideration of merits which has the potential to prejudice eitherthe case of the prosecution or the defence, is undesirable.

Code of Criminal Procedure, 1973:Right of victims to be heard– First Indian jurisprudence is constantly evolving, whereby, theright of victims to be heard, especially in cases involving heinouscrimes, is increasingly being acknowledged; Second, where thevictims themselves have come forward to participate in a criminalproceeding, they must be accorded with an opportunity of a fairand effective hearing – If the right to file an appeal against acquittalis not accompanied with the right to be heard at the time of decidinga bail application, the same may result in grave miscarriage ofjustice.

Code of Criminal Procedure, 1973: Cancellation of Bail –Interference by Supreme Court –This Court on account of the factorslike (i) irrelevant considerations having impacted the impugned ordergranting bail; (ii) the High Court exceeding its jurisdiction bytouching upon the merits of the case; (iii) denial of victims’ right toparticipate in the proceedings; and (iv) the tearing hurry shown bythe High Court in entertaining or granting bail to the respondent/accused; can rightfully cancel the bail.

AB

C

D

E

F

G

538SUPREME COURT REPORTS

[2022] 4 S.C.R.

ADisposing of the appeal and remitting the matter to HighCourt, the Court HELD: 1. A ‘victim’ within the meaning of Cr.P.C. cannotbe asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/She has a legallyBvested right to be heard at every step post the occurrence of anoffence. Such a ‘victim’ has unbridled participatory rights fromthe stage of investigation till the culmination of the proceedingsin an appeal or revision. ‘Victim’ and ‘complainant/informant’ aretwo distinct connotations in criminal jurisprudence. It is not alwaysCnecessary that the complainant/informant is also a ‘victim’, foreven a stranger to the act of crime can be an ‘informant’, andsimilarly, a ‘victim’ need not be the complainant or informant of afelony. [Para 24][547-G-H; 548-A-B]

2. This Court is tasked with ensuring that neither the rightDof an accused to seek bail pending trial is expropriated, nor the‘victim’ or the State are denuded of their right to oppose such aprayer. In a situation like this, and with a view to balance thecompeting rights, this Court has been invariably remanding thematter(s) back to the High Court for a fresh consideration. Theends of justice would be adequately met by remitting this case toEthe High Court for a fresh adjudication of the bail application ofthe Respondent-accused, in a fair, impartial and dispassionatemanner. The bail application shall be decided on merits and aftergiving adequate opportunity of hearing to the victims as well. Ifthe victims are unable to engage the services of a private counsel,Fit shall be obligatory upon the High Court to provide them a legalaid counsel with adequate experience in criminal law, at the State’sexpense. [Paras 43, 44][554-C-F]

Mallikarjun Kodagali (Dead) v. State of Karnataka &Ors. (2019) 2 SCC 752 : [2018] 13 SCR 1; NarendraGK. Amin (Dr.) v. State of Gujarat & Anr. (2008) 13 SCC584 : [2008] 6 SCR 1149, Union of India v. K.A. Najeeb(2021) 3 SCC 713 – relied on.

H

Kanwar Singh Meena v. State of Rajasthan (2012) 12SCC 180 : [2012] 10 SCR 847; Prasanta Kumar Sarkarv. Ashis Chatterjee & Anr. (2010) 14 SCC 496 : [2010]12 SCR 1165 – affirmed.

A

Neeru Yadav v. State of U.P. & Anr. (2014) 16 SCC 508: [2014] 12 SCR 453; Anil Kumar Yadav v. State (NCTof Delhi) & Anr. (2018) 12 SCC 129 : [2017] 11 SCR195 (32);. Mahipal v. Rajesh Kumar & Anr. (2020) 2SCC 118 : [2019] 14 SCR 529; Alister Anthony Parierav. State of Maharashtra (2012) 2 SCC 648 : [2012] 1SCR 145; Puran v. Rambilas & Anr. (2001) 6 SCC 338: [2001] 3 SCR 432; Naresh Pal Singh v. Raj Karanand Anr. (1999) 9 SCC 104; Brij Nandan Jaiswal v.Munna alias Munna Jaiswal & Anr. (2009) 1 SCC 678: [2008] 17 SCR 1348; Hasri Om Yadav v. Dinesh LSingh Jaat & Anr. 2013 SCC Online SC 610 – referredto.

B

C

D

Case Law Reference

ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.632 of 2022.

From the Judgment and Order dated 10.02.2022 of the High Courtof Judicature at Allahabad, Lucknow Bench in Criminal Misc. BailApplication No.13762 of 2021.

B

Dushyant Dave, Sr. Adv., Prashant Bhushan, Rahul Gupta, Ms.Neha Sangwan, Alice Raj, Shiv Kumar Tripathi, C. S. Panda, Ms. SheelaMishra, Sanjay Kr. Mukherjee, Advs. for the Appellants.

Mahesh Jethmalani, Sr. Adv., T. Mahipal, Ms. Ruchira Goel, AjayAwasthi, Ravi Sharma, Ms. Mughda Pande, Wedo Khalo, S. Pande,CTuhin, Dr. A. P. Singh, V. P. Singh, Ms. Geeta Chauhan, Sadashiv, Ms.Astha Tyagi, Dinesh Chander, Siddharth Raj Agarwal, Ms. Ruchira Goel,Ronak Karanpuria, Advs. for the Respondents.

By Courts Motion

DThe Judgment of the Court was delivered by SURYA KANT, J.

Leave Granted.

2. The challenge is laid to an order dated 10.02.2022 passed bythe High Court of Judicature at Allahabad, Lucknow bench, wherebyERespondent No.1 (hereinafter-”Respondent-Accused”), has beenenlarged on bail in a case under Sections 147, 148, 149, 302, 307, 326read with Sections 34 and 120-B of the Indian Penal Code, 1860(hereinafter- “IPC”), as well as Sections 3, 25 and 30 of the Arms Act,1959.

FFacts

3. In brief, it is alleged that several farmers had gathered in theKhairaitya village in Lakhimpur Kheri District on 29.09.2021, to celebratethe birth anniversary of Sardar Bhagat Singh and to protest against theIndian Agricultural Acts of 2020. During this gathering, the farmersGobjected to certain comments made by Mr. Ajay Mishra @ Teni, UnionMinister of State for Home. In the course of the meeting, the farmersdecided to organise a protest against Mr. Ajay Mishra in his ancestralvillage on 03.10.2021. Various farmers’ organisations issued appeals totheir members and supporters to participate in the demonstration, andHpamphlets were also distributed.

4. On 03.10.2021, an annual Dangal (wrestling) competition wasbeing organised by Ashish Mishra @ Monu, i.e., Respondent-Accused.The program was to be attended by Mr. Ajay Mishra, as well as Mr.Keshav Prasad Maurya, Deputy Chief Minister of the State of UttarPradesh, for whom a helipad was constructed in the playground ofMaharaja Agrasen Inter College, Tikonia. A crowd of farmers startedgathering near the helipad in the morning of 03.10.2021. The route ofthe Chief Guest was thus changed to take him by road. But the changedroad route was also passing in front of the Maharaja Agrasen InterCollege, where the protesting farmers had been gathering in largenumbers. This led the authorities to take recourse to yet another alternativeway to reach the Dangal venue.

5. In the meantime, some supporters of Respondent No.1, whowere travelling by a car to the Dangal venue, were statedly attacked bycertain farmers. The mirrors of their vehicle(s) were smashed. A hoardingboard that displayed pictures of Mr. Ajay Mishra and the Respondent-Accused was also damaged. It is alleged that upon gathering knowledgeof these events, coupled with the information that the route of the ChiefGuest had to be changed because of the protesting farmers, Respondent-Accused became agitated. He, thereafter, is said to have conspired withhis aides and confidants, and decided to teach the protesting farmers alesson. Respondent No.1 and his aides, armed with weapons, left theDangal venue in a Mahindra Thar SUV, a Fortuner vehicle and a Scorpiovehicle, and drove towards the farmers’ protest site.

6. When the farmers were returning to their homes after theirprotest was over, Respondent-Accused along with his associates whowere in the aforesaid three vehicles, allegedly drove into the crowd ofthe returning farmers and hit them with an intention to kill. Resultantly,many farmers and other persons were crushed by the vehicles. TheThar vehicle was eventually stopped. Respondent No.1 and his co-accused Sumit Jaiswal then stepped out of the Thar and escaped byrunning towards a nearby sugarcane field while taking cover by firingtheir weapons.

7. As a consequence of this incident, four farmers, one journalist,the driver of the Thar Vehicle-Hariom, and two others, were killed. Nearlyten farmers suffered major and minor injuries.

8. In the early hours of 04.10.2021, FIR no. 219 of 2021 wasregistered on the complaint of the Appellant No.1, i.e, Jagjeet Singh, at AB

C

DE

F

G

H

APolice Station Tikonia against Respondent No.1 and 15-20 unknownpersons, for causing the death of four farmers. It was alleged thatRespondent No.1 along with his accomplices drove into the crowd ofprotesting farmers and crushed them. It was further alleged that oneSukhvinder Singh died on the spot due to a fire arm injury. Another FIR[1]was registered by Sumit Jaiswal against unknown persons and protestingBfarmers for having killed four persons, including the journalist RamanKashyap, the driver of the Thar vehicle-Hariom and two other supportersof the Respondent-Accused.

9. Meanwhile, a PIL was filed in this Court expressing seriousconcerns regarding the fairness of the investigation into the incidents ofC03.10.2021. This Court, on 17.11.2021, reconstituted the SIT and newmembers were inducted to carry out the investigation. Justice (Retd.)Rakesh Kumar Jain, a former Judge of the Punjab and Haryana HighCourt, was appointed to monitor the investigation. The reconstituted SITfiled a chargesheet on 03.01.2022, wherein, the Respondent-AccusedDwas found to be the main perpetrator of the events that took place on03.10.2021.

10. The Accused-Respondent moved an application for bail beforethe High Court of Judicature at Allahabad, Lucknow Bench. Vide theimpugned order dated 10.02.2022 (corrected on 14.02.2022), the HighECourt allowed the application and granted regular bail to the Respondent-Accused. The relief was primarily granted on four counts. Firstly, theCourt held that the primary allegation against the Respondent-Accusedwas of firing his weapon and causing gunshot injuries, but neither theinquest reports nor the injury reports revealed any firearm injury, therefore,Fthe High Court opined that the present case was one of “accident byhitting with the vehicle”. Secondly, the allegation that he provoked thedriver of the car could not be sustained since the driver along with twoothers, who were in the vehicle, were killed by the protesters. Thirdly, itwas noted that the Respondent-Accused had joined the investigation.Fourthly, the charge sheet had been filed.G

11. Discontented with the order of the High Court, the aggrieved‘victims’ are before us.

1 FIR No. 220 of 2021 was registered under Sections 147, 323, 324, 336 and 302 of theHIPC.

Contentions

12. Shri Dushyant Dave, learned Senior Counsel on behalf of theAppellants vehemently contended that the High Court had erred inoverlooking several important aspects, and instead placed undueweightage on issues such as the absence of any fire arm injury. Relyingupon the decision of this in Court in the case of Mahipal v. RajeshKumar & Anr.[2], it was canvassed that the High Court had disregardedwell-established principles that govern the Court’s discretion at the timeof granting bail. It was further pressed that the bail order was passed ina mechanical manner with non-application of mind, rendering it illegaland liable to be set aside. The learned Senior Counsel also pointed outthat during the course of the online proceedings, counsel for theComplainant/victims were disconnected, and were not heard by the HighCourt. It was stated that their application for re-hearing the bail applicationwas also not considered by the High Court. Learned Senior Counselalso drew our attention to FIR No. 46 of 2022, which was filed by oneDiljot Singh, a witness to the incident of 03.10.2021. The said witnesstherein claimed that on 10.03.2022, he was threatened and attacked bythe supporters of the Respondent-Accused. Alternatively, emphasis wasplaced on judgment of this Court in Alister Anthony Pariera v. State ofMaharashtra[3], to highlight that if an act of rash and negligent drivingwas preceded by real intention on the part of the wrong doer to causedeath, then a charge under section 302 IPC may be attracted.

13. On the other hand, Shri Ranjit Kumar, learned Senior Counselappearing on behalf of the Respondent No.1, vigorously defended thejudgment of the High Court. It was submitted that given the allegationsmade in FIR No. 219 of 2021, the High Court was bound to prima facieconsider the issue of bullet injuries. He further asserted that theRespondent-Accused was never in the Thar vehicle and was instead atthe Dangal venue. Lastly, learned Senior Counsel argued that in theevent that this Court was to set aside the impugned order and cancel thebail, the Respondent accused would be left without any remedy and itwould be nearly impossible for him to be released on bail till the conclusionof trial.

14. Shri Mahesh Jethmalani, learned Senior Counsel appearingfor Respondent No.2, i.e., State of Uttar Pradesh, at the outset argued 2 (2020) 2 SCC 118 ¶ 12 & 133 (2012) 2 SCC 648 ¶ 47

A

BC

DE

F

G

H

Athat a bail hearing should not be converted into a mini trail. He urged thatthe Court ought to consider three basic parameters at the time of decidingbail- (i) the possibility of tampering with evidence; (ii) whether the accusedwould be a flight risk; & (iii) the nature of the offense. With respect tothe first consideration, it was highlighted that the State Government,under the ambit of the Witness Protection Scheme, 2018, had providedBadequate security, including armed personnel, to all the ‘victims’ andwitnesses. It was explained that the State was regularly following upwith the witnesses and that the possibility of the accused tampering withany witness, was narrow. Learned Senior Counsel further submittedthat given the local roots of the Respondent-Accused, he could not beCconsidered as a flight risk. Shri Jethmalani, however, stated that thenature of the offense in the present case was grave. He clarified thatthe State had vehemently opposed the bail application before the HighCourt and in no manner, does it deviate from its previous stand.

AnalysisD15. Having heard learned Senior Counsels for the parties atconsiderable length, we find that the following questions fall for ourconsideration:- A.Whether a ‘victim’ as defined under Section 2(wa) of theCode of Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”)Eis entitled to be heard at the stage of adjudication of bailapplication of an accused?

Analysis

B.Whether the High Court overlooked the relevantconsiderations while passing the impugned order grantingbail to the Respondent-Accused?; andF

C.If so, whether the High Court’s order dated 10.02.2022 ispalpably illegal and warrants interference by this Court?

A. Victim’s right to be heard:

16. Until recently, criminal law had been viewed on a dimensionalGplane wherein the Courts were required to adjudicate between theaccused and the State. The ‘victim’ — the de facto sufferer of a crimehad no participation in the adjudicatory process and was made to sitoutside the Court as a mute spectator. However, with the recognitionthat the ethos of criminal justice dispensation to prevent and punish ‘crime’had surreptitiously turned its back on the ‘victim’, the jurisprudence withH

respect to the rights of victims to be heard and to participate in criminalproceedings began to positively evolve.

17. Internationally, the UN Declaration of Basic Principles ofJustice for the Victims of Crime and Abuse of Power, 1985, which wasadopted vide the United Nations General Assembly Resolution 40/34,was a landmark in boosting the pro-victim movement. The Declarationdefined a ‘victim’ as someone who has suffered harm, physical or mentalinjury, emotional suffering, economic loss, impairment of fundamentalrights through acts or omissions that are in violation of criminal lawsoperative within a State, regardless of whether the perpetrator is identified,apprehended, prosecuted or convicted, and regardless of the familialrelationship between the perpetrator and the ‘victim’. Other internationalbodies, such as the European Union, also took great strides in grantingand protecting the rights of ‘victims’ through various Covenants[4].

18. Amongst other nations, the United States of America had alsomade two enactments on the subject i.e. (i) The Victims of Crime Act,1984 under which legal assistance is granted to the crime-victims; and(ii) The Victims’ Rights and Restitution Act of 1990. This was followedby meaningful amendments, repeal and insertion of new provisions inboth the Statutes through an Act passed by the House of Representativesas well as the Senate. In Australia, the Legislature has enacted SouthAustralia Victims of Crime Act, 2001. While in Canada there is theCanadian Victims Bill of Rights. Most of these legislations have definedthe ‘victim’ of a crime liberally and have conferred varied rights on suchvictims.

19. On the domestic front, recent amendments to the Cr.P.C. haverecognised a victim’s rights in the Indian criminal justice system. Thegenesis of such rights lies in the 154[th] Report of the Law Commission ofIndia, wherein, radical recommendations on the aspect of compensatoryjustice to a victim under a compensation scheme were made. Thereafter,a Committee on the Reforms of Criminal Justice System in its Report in 4 The position of a victim in the framework of Criminal Law and Procedure, Council ofEurope Committee of Ministers to Member States, 1985; Strengthening victim’s rightin the EU communication from the Commission to the European Parliament, the Council,the Economic and Social Committee and the Committee of the Reasons, EuropeanUnion, 2011; Proposal for a Directive of the European Parliament and of the Councilestablishing “Minimum Standards on the Rights, Support and Protection of Victims ofCrime, European Union, 2011.

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A2003, suggested ways and means to develop a cohesive system in whichall parts are to work in coordination to achieve the common goal ofrestoring the lost confidence of the people in the criminal justice system.The Committee recommended the rights of the victim or his/her legalrepresentative “to be impleaded as a party in every criminal proceedingwhere the charges punishable with seven years’ imprisonment orBmore”.

20. It was further recommended that the victim be armed with aright to be represented by an advocate of his/her choice, and if he/she isnot in a position to afford the same, to provide an advocate at the State’sexpense. The victim’s right to participate in criminal trial and his/herCright to know the status of investigation, and take necessary steps, or tobe heard at every crucial stage of the criminal proceedings, including atthe time of grant or cancellation of bail, were also duly recognised by theCommittee. Repeated judicial intervention, coupled with therecommendations made from time to time as briefly noticed above,Dprompted the Parliament to bring into force the Code of CriminalProcedure (Amendment) Act, 2008, which not only inserted the definitionof a ‘victim’ under Section 2 (wa) but also statutorily recognised variousrights of such victims at different stages of trial.

21. It is pertinent to mention that the legislature has thoughtfullyEgiven a wide and expansive meaning to the expression ‘victim’ which“meansa person who has suffered any loss or injury caused byreason of the act or omission for which the accused person hasbeen chargedand the expression “victim” includes his or herguardian or legal heir”

F22. This Court, in Mallikarjun Kodagali (Dead) v. State ofKarnataka & Ors[5], while dealing with questions regarding a victim’sright to file an appeal under section 372 of Cr.P.C, observed that therewas need to give adequate representation to victims in criminalproceedings. The Court therein affirmed the victim’s right to file an appealagainst an order of acquittal. In Mallikarjun Kodagali, though the CourtGwas primarily concerned with a different legal issue, it will be fruitful inthe present context to take note of some of the observations made therein:

“3. What follows in a trial is often secondary victimisationthrough repeated appearances in court in a hostile or a semi- H5 (2019) 2 SCC 752, ¶ 3 & 8

hostile environment in the courtroom. Till sometime back,secondary victimisation was in the form of aggressive andintimidating cross-examination, but a more humaneinterpretation of the provisions of the Evidence Act, 1872 hasmade the trial a little less uncomfortable for the victim of anoffence, particularly the victim of a sexual crime. In thisregard, the judiciary has been proactive in ensuring that therights of victims are addressed, but a lot more needs to bedone. Today, the rights of an accused far outweigh the rightsof the victim of an offence in many respects. There needs tobe some balancing of the concerns and equalising their rightsso that the criminal proceedings are fair to both. [GirishKumar Suneja v. CBI, (2017) 14 SCC 809 : (2018) 1 SCC(Cri) 202]……

xxx

8. The rights of victims, and indeed victimology, is an evolvingjurisprudence and it is more than appropriate to move forwardin a positive direction, rather than stand still or worse, take astep backward. A voice has been given to victims of crime byParliament and the judiciary and that voice needs to be heard,and if not already heard, it needs to be raised to a higherdecibel so that it is clearly heard.”

23. It cannot be gainsaid that the right of a victim under the amendedCr.P.C. are substantive, enforceable, and are another facet of humanrights. The victim’s right, therefore, cannot be termed or construedrestrictively like a brutum fulmen. We reiterate that these rights aretotally independent, incomparable, and are not accessory or auxiliary tothose of the State under the Cr.P.C. The presence of ‘State’ in theproceedings, therefore, does not tantamount to according a hearing to a‘victim’ of the crime.

24. A ‘victim’ within the meaning of Cr.P.C. cannot be asked toawait the commencement of trial for asserting his/her right to participatein the proceedings. He/She has a legally vested right to be heard atevery step post the occurrence of an offence. Such a ‘victim’ hasunbridled participatory rights from the stage of investigation till theculmination of the proceedings in an appeal or revision. We may hasten A

BC

DE

F

G

H

Ato clarify that ‘victim’ and ‘complainant/informant’ are two distinctconnotations in criminal jurisprudence. It is not always necessary thatthe complainant/informant is also a ‘victim’, for even a stranger to theact of crime can be an ‘informant’, and similarly, a ‘victim’ need not bethe complainant or informant of a felony.

B

B25. The above stated enunciations are not to be conflated withcertain statutory provisions, such as those present in Special Acts likethe Scheduled Cast and Scheduled Tribes (Prevention of Atrocities) Act,1989, where there is a legal obligation to hear the victim at the time ofgranting bail. Instead, what must be taken note of is that; First, theIndian jurisprudence is constantly evolving, whereby, the right of victimsCto be heard, especially in cases involving heinous crimes, is increasinglybeing acknowledged; Second, where the victims themselves have comeforward to participate in a criminal proceeding, they must be accordedwith an opportunity of a fair and effective hearing. If the right to file anappeal against acquittal, is not accompanied with the right to be heard atDthe time of deciding a bail application, the same may result in gravemiscarriage of justice. Victims certainly cannot be expected to be sittingon the fence and watching the proceedings from afar, especially whenthey may have legitimate grievances. It is the solemn duty of a court todeliver justice before the memory of an injustice eclipses.E

26. Adverting to the case at hand, we are constrained to expressour disappointment with the manner in which the High Court has failedto acknowledge the right of the victims. It is worth mentioning that, thecomplainant in FIR No. 219 of 2021, as well as the present Appellants,are close relatives of the farmers who have lost their lives in the incidentFdated 03.10.2021. The specific stance taken by learned Senior Counselfor the Appellants that the Counsel for the ‘victims’ had got disconnectedfrom the online proceedings and could not make effective submissionsbefore the High Court has not been controverted by the Respondents.Thereafter, an application seeking a rehearing on the ground that the‘victims’ could not participate in the proceedings was also moved but itGappears that the same was not considered by the High Court whilegranting bail to the Respondent-Accused.

27. We, therefore, answer question (A) in the affirmative, andhold that in the present case, the ‘victims’ have been denied a fair andeffective hearing at the time of granting bail to the Respondent-Accused.H

B. Whether the High Court overlooked relevant considerations:

28. We may, at the outset, clarify that power to grant bail underSection 439 of Cr.P.C., is one of wide amplitude. A High Court or aSessions Court, as the case may be, are bestowed with considerablediscretion while deciding an application for bail. But, as has been held bythis Court on multiple occasions, this discretion is not unfettered. On thecontrary, the High Court or the Sessions Court must grant bail after theapplication of a judicial mind, following well-established principles, andnot in a cryptic or mechanical manner.

29. Ordinarily, this Court would be slow in interfering with anyorder wherein bail has been granted by the Court below. However, if itis found that such an order is illegal or perverse[6], or is founded uponirrelevant materials adding vulnerability to the order granting bail[7], anappellate Court will be well within its ambit in setting aside the same andcancelling the bail. This position of law has been consistently reiterated,including in the case of Kanwar Singh Meena v. State of Rajasthan[8],wherein this Court set aside the bail granted to the accused on the premisethat relevant considerations and prima facie material against the accusedwere ignored. It was held that:

“10….Each criminal case presents its own peculiar factualscenario and, therefore, certain grounds peculiar to aparticular case may have to be taken into account by thecourt. The court has to only opine as to whether there is primafacie case against the accused. The court must not undertakemeticulous examination of the evidence collected by the policeand comment on the same. Such assessment of evidence andpremature comments are likely to deprive the accused of afair trial.…The High Court or the Sessions Court can cancelthe bail even in cases where the order granting bail suffersfrom serious infirmities resulting in miscarriage of justice. Ifthe court granting bail ignores relevant materials indicatingprima facie involvement of the accused or takes into accountirrelevant material, which has no relevance to the question ofgrant of bail to the accused, the High Court or the Sessions 6 Puran v. Rambilas & Anr., (2001) 6 SCC 338, ¶10

7 Narendra K. Amin (Dr.) v. State of Gujarat & Anr., (2008) 13 SCC 584, ¶ 25

8 (2012) 12 SCC 180, ¶ 10

A

B

C

D

E

F

G

H

550SUPREME COURT REPORTS

ACourt would be justified in cancelling the bail. Such ordersare against the well-recognised principles underlying thepower to grant bail. Such orders are legally infirm andvulnerable leading to miscarriage of justice and absence ofsupervening circumstances such as the propensity of theaccused to tamper with the evidence, to flee from justice, etc.Bwould not deter the court from cancelling the bail. The HighCourt or the Sessions Court is bound to cancel such bail ordersparticularly when they are passed releasing the accusedinvolved in heinous crimes because they ultimately result inweakening the prosecution case and have adverse impact onCthe society. Needless to say that though the powers of thisCourt are much wider, this Court is equally guided by theabove principles in the matter of grant or cancellation of bail.”

30. It will be beneficial at this stage to recapitulate the principlesDthat a Court must bear in mind while deciding an application for grant ofbail. This Court in the case of Prasanta Kumar Sarkar v. AshisChatterjee & Anr.[9], after taking into account several precedents,elucidated the following:

“9…However, it is equally incumbent upon the High Court toEexercise its discretion judiciously, cautiously and strictly incompliance with the basic principles laid down in a plethoraof decisions of this Court on the point. It is well settled that,among other circumstances, the factors to be borne in mindwhile considering an application for bail are:

F(i)whether there is any prima facie or reasonable groundto believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;G(iv)danger of the accused absconding or fleeing, if releasedon bail;

(v) character, behaviour, means, position and standing ofthe accused; H9 (2010) 14 SCC 496, ¶ 9 & 10

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses beinginfluenced; and

(viii) danger, of course, of justice being thwarted by grant ofbail.”

31. The Court in Prasanta Kumar Sarkar went on to note:

“10. It is manifest that if the High Court does not advert tothese relevant considerations and mechanically grants bail,the said order would suffer from the vice of non-applicationof mind, rendering it to be illegal. In Masroor [(2009) 14 SCC286 : (2010) 1 SCC (Cri) 1368] , a Division Bench of thisCourt, of which one of us (D.K. Jain, J.) was a member,observed as follows : (SCC p. 290, para 13)

“13. … Though at the stage of granting bail an elaborateexamination of evidence and detailed reasons touching themerit of the case, which may prejudice the accused, shouldbe avoided, but there is a need to indicate in such orderreasons for prima facie concluding why bail was beinggranted particularly where the accused is charged of havingcommitted a serious offence.”

32. The aforestated principles have been affirmed and restated ina number of subsequent decisions, including in the recent judgments ofNeeru Yadav v. State of U.P. & Anr.[10], Anil Kumar Yadav v. State(NCT of Delhi) & Anr.,[11] and Mahipal v. Rajesh Kumar & Anr.[12].

33. Before dealing with the case at hand, we may, at the cost ofrepetition, emphasise that a Court while deciding an application for bail,should refrain from evaluating or undertaking a detailed assessment ofevidence, as the same is not a relevant consideration at the thresholdstage. While a Court may examine prima facie issues, including anyreasonable grounds whether the accused committed an offence or the 10 (2014) 16 SCC 508, ¶ 1111 (2018) 12 SCC 129, ¶ 17 & 1812 (2020) 2 SCC 118, ¶ 13

A

B

C

DE

F

G

H

Aseverity of the offence itself, an extensive consideration of merits whichhas the potential to prejudice either the case of the prosecution or thedefence, is undesirable. It is thus deemed appropriate to outrightly clarifythat neither have we considered the merits of the case nor are we inclinedto comment on the evidence collected by the SIT in the present case.

B34. We may now briefly note the holding of the High Court as ismanifest from paragraph 25 of the impugned order which reads as follows:

“Considering the facts and circumstances of the case in toto,it is evidence that as per the F.I.R., role of firing was assignedto the applicant for killing the protestors, but during the courseCof investigation, no such firearm injuries were found eitheron the body of any of the deceased or on the body of anyinjured person. Thereafter, the prosecution alleged that theapplicant provoked the driver of the vehicle for crushing theprotestors, however, the driver along with two others, whowere in the vehicle, has been killed by the protestors. It isDfurther evidence that during the course of investigation,notice was issued to the applicant and he appeared beforethe Investigation Officer. It is also evidence that charge sheethas already been filed. In such circumstances, this Court isof the view that the applicant is entitled to be released onEbail.”

35. We find ourselves in agreement with the learned Senior Counselfor the Appellants that the High Court has completely lost sight of theprinciples enumerated above, which conventionally govern a Court’sdiscretion when deciding the question whether or not to grant bail. InsteadFof looking into aspects such as the nature and gravity of the offence;severity of the punishment in the event of conviction; circumstanceswhich are peculiar to the accused or victims; likelihood of the accusedfleeing; likelihood of tampering with the evidence and witnesses and theimpact that his release may have on the trial and the society at large; theHigh Court has adopted a myopic view of the evidence on the recordGand proceeded to decide the case on merits.

36. The High Court has taken into account several irrelevantconsiderations, whilst simultaneously ignoring judicial precedents andestablished parameters for grant of bail. It has been ruled on numerousoccasions that a F.I.R. cannot be treated as an encyclopaedia of events.H

While the allegations in the F.I.R., that the accused used his firearm andthe subsequent post mortem and injury reports may have some limitedbearing, there was no legal necessity to give undue weightage to thesame. Moreover, the observations on merits of a case when the trial hasyet to commence, are likely to have an impact on the outcome of thetrial proceedings.

37. Keeping all these factors cumulatively in mind, we have nodifficulty in answering question (B) also in the affirmative. It is held thatthe order under challenge does not conform to the relevant considerations.

C. Whether interference is warranted by this Court:

38. As a natural and consequential corollary to the findings underquestions (A) & (B) above, the impugned order of the High Court dated10.2.2022 (as corrected on 14.2.2022) cannot be sustained and has tobe set aside. Ordered accordingly.

39. As a sequel thereto, bail bonds of the respondent/accused arecancelled and he is directed to surrender within a week.

40. Having held so, we cannot be oblivious to what has beenurged on behalf of the Respondent-Accused that cancellation of bail bythis Court is likely to be construed as an indefinite foreclosure of hisright to seek bail. It is not necessary to dwell upon the wealth of caselaw which, regardless of the stringent provisions in a penal law or thegravity of the offence, has time and again recognised the legitimacy ofseeking liberty from incarceration. To put it differently, no accused canbe subjected to unending detention pending trial, especially when thelaw presumes him to be innocent until proven guilty. Even where statutoryprovisions expressly bar the grant of bail, such as in cases under theUnlawful Activities (Prevention) Act, 1967, this Court has expressly ruledthat after a reasonably long period of incarceration, or for any othervalid reason, such stringent provisions will melt down, and cannot bemeasured over and above the right of liberty guaranteed under Article21 of the Constitution (See Union of India v. K.A. Najeeb, (2021) 3SCC 713, ¶ 15 & 17).

41. We are, thus, of the view that this Court on account of thefactors like (i) irrelevant considerations having impacted the impugnedorder granting bail; (ii) the High Court exceeding its jurisdiction bytouching upon the merits of the case; (iii) denial of victims’ right to A

B

C

D

E

F

G

H

Aparticipate in the proceedings; and (iv) the tearing hurry shown by theHigh Court in entertaining or granting bail to the respondent/accused;can rightfully cancel the bail, without depriving the Respondent-Accusedof his legitimate right to seek enlargement on bail on relevant considerations.

B42. We are thus inclined to allay the apprehension in the mind oflearned Senior Counsel for the Respondent-Accused that the cancellationof bail by this Court shall amount to denial bail to the Respondent-Accused till conclusion of the trial.

43. This Court is tasked with ensuring that neither the right of anCaccused to seek bail pending trial is expropriated, nor the ‘victim’ or theState are denuded of their right to oppose such a prayer. In a situationlike this, and with a view to balance the competing rights, this Court hasbeen invariably remanding the matter(s) back to the High Court for afresh consideration.[13] We are also of the considered view that ends ofjustice would be adequately met by remitting this case to the High CourtDfor a fresh adjudication of the bail application of the Respondent-Accused,in a fair, impartial and dispassionate manner, and keeping in view thesettled parameters which have been elaborated in paragraphs 30 & 31of this order.

44. Needless to say that the bail application shall be decided onEmerits and after giving adequate opportunity of hearing to the victims aswell. If the victims are unable to engage the services of a private counsel,it shall be obligatory upon the High Court to provide them a legal aidcounsel with adequate experience in criminal law, at the State’s expense.

45. Lastly, in furtherance of the order of this court dated 26.10.2021Fin Writ Petition (Criminal) No. 426/2021, and keeping in mind theallegations of the Appellants with respect to the incident dated 10.03.2022,we deem it appropriate to observe that if the aforestated incident, hashappened in the manner as alleged, the same should serve as anawakening call to the State authorities to reinforce adequate protectionGfor the life, liberty, and properties of the eye/injured witnesses, as wellas for the families of the deceased.

13 Naresh Pal Singh v. Raj Karan and Anr, (1999) 9 SCC 104, ¶ 2; Brij Nandan Jaiswalv. Munna alias Munna Jaiswal & Anr, (2009) 1 SCC 678, ¶ 12 & 13; Hari Om Yadav v.HDinesh Singh Jaat & Anr, 2013 SCC Online SC 610, ¶ 6.

Conclusion

46. We set aside the impugned order dated 10.02.2022 (correctedon 14.2.2022) and remit the matter back to the High Court. RespondentNo.1 shall surrender and be taken into custody as already directed inparagraph 39 above. We have not expressed any opinion either on factsor merits, and all questions of law are left open for the High Court toconsider and decide. The High Court shall decide the bail applicationafresh expeditiously, and preferably within a period of three months.The appeal is disposed of in the above terms.

Devika Gujral(Assisted by : Shubhanshu Das, LCRA)

Appeal disposed of.

A

B

C

D

E

F

G

H